In the American criminal justice system, wealth—not culpability—shapes outcomes. Indigent people are unfairly disadvantaged at every step in a system that treats the rich and guilty better than the poor and innocent.
In many jurisdictions in the United States, people who are arrested and do not have money to pay bail are jailed while awaiting trial. While some people are denied bail because they are at risk of flight or illegal activity, most are detained solely because they are too poor to pay bail. Pretrial detention interferes with employment, payment of bills, and care giving, and can inflict extraordinary psychological damage. Even for minor offenses, people who are detained pretrial are more likely to be incarcerated and more likely to receive a longer sentence.
Defendants facing a felony charge, those charged with misdemeanors who could be jailed, convicted defendants filing a first appeal, and juveniles charged with delinquency all have a constitutional right to counsel, but poor people in most jurisdictions do not get adequate legal representation. Only 24 states have public defender systems, and even the best of those are hampered by lack of funding and crippling case loads. Defendants too poor to post bail can spend months in jail waiting for a lawyer to be appointed. Many poor people charged with misdemeanors appear in court hearings without a lawyer, where they must make the untenable choice of pleading guilty and being released (burdened by fines, court costs, and other collateral consequences of a criminal conviction that they cannot afford) or remaining in jail indefinitely waiting for a lawyer. Indigent defense in America is so bad that the nation’s top prosecutor, then-Attorney General Eric Holder, declared it is “in a state of crisis.”
It is illegal to imprison people because they are too poor to pay a fine, but shocking numbers of poor people have been jailed for being unable to pay fines and fees incurred for minor infractions and misdemeanors. Courts have contracted with for-profit, private probation companies to collect fines from people on probation. The companies tack on their own fees, often $80-100 a month, which escalate if not immediately paid. Private probation companies profit from requiring probationers to pay for drug treatment, electronic monitoring, and myriad other services they are required to participate in as a condition of their supervision. Impoverished people with fines of a few hundred dollars can end up owing thousands, and if they cannot pay, their probation is revoked and they are jailed.
Jurisdictions in nearly every state impose “pay-to-stay” fees on incarcerated people for everything from medical costs to food and clothing. In the last few decades, additional fees have proliferated, including charges for police transport, case filing, felony surcharges, electronic monitoring, drug testing, and sex offender registration. Forty-three states and the District of Columbia allow fees to be charged for using a public defender. A defendant can emerge from the system owing thousands of dollars in fees.
People leaving prison face huge obstacles to obtaining employment, housing, and other social services; those convicted of felony drug offenses may be barred from receiving federal housing and cash assistance and food stamps. Many also are burdened by staggering child support arrears, drug and alcohol testing fees, parole supervision fees and fees for drug treatment and other programs that are conditions of their parole.
After the Civil War, states passed laws authorizing prisoners to be leased to private industries.
The Marshall Project found bail companies took in $43 million over 18 months in Mississippi, where average income is less than $22,000.
More than 1300 private conversations between incarcerated people and their lawyers were recorded at the private pre-trial facility.